SNP risk repeating gender reform errors with conversion therapy ban – Murdo Fraser

Concerns about infringements of religious freedom, free speech and parental rights could prompt as many as 15 SNP MSPs to rebel against the Scottish Government’s planned conversion therapy ban

Just over a year ago, Holyrood sat into the early hours of the morning debating the Gender Recognition Reform Bill. A few days before Christmas 2022, MSPs finally agreed, by a considerable majority, to allow self-identification of gender to become part of Scots law.

The rest, as they say, is history. The UK Government, in the shape of the Secretary of State for Scotland, Alister Jack, stepped in to block the legislation in an unprecedented move, on the grounds that self-ID of gender would be incompatible with the UK Equality Act, specifically because of the threat to women-only spaces. That decision by the UK Government was held to be reasonable in a judgment by Scotland’s highest court just a few weeks ago, and the Scottish Government has now decided not to pursue an appeal against that ruling.

The weakness in the SNP-Green government’s approach to these issues was exposed more dramatically than any critic of the legislation could manage, by the actions of Isla Bryson, the biologically male rapist identifying as a transwoman and seeking to be placed in a prison for females. It was an entirely foreseeable episode, but one which no one in the Scottish Government seemed to have been able to see coming. Unsurprisingly, surveys of public opinion showed that there was majority opposition to this reform of the law, particularly given the threat to women and girls.

Seven years in prison

It now looks like Scottish ministers have learned nothing from the events of the past year, with the latest proposals to bring forward a ban on so-called “conversion therapy”. This new law is intended to outlaw treatments or practice that aims to change, suppress, or eliminate a person’s sexual orientation, gender identity or gender expression.

There is little evidence that conversion therapy is practised in Scotland on a substantial basis, and such evidence as exists is anecdotal and based on self-selecting surveys. Despite this, a consultation was launched last week as a precursor to a Bill being introduced in this area, which potentially could see those found guilty of an offence jailed for up to seven years.

Clearly no one should be subject to coercion or torture in an effort to change who they are. It is probable that some of the practices that have been identified as conversion therapy are already illegal, but it makes sense to properly scrutinise the current law to see whether there may be loopholes that need to be closed.

The reach of the proposed legislation is such that very serious concerns have been raised by church groups that the expression of traditional religious beliefs could be criminalised by such a ban. A legal opinion from the eminent human rights lawyer, Aidan O’Neill KC, states that a ban of the sort proposed would “criminalise, among other things, the open expression of such orthodox traditional religious beliefs that sexual activity is only properly permissible within the bounds of an opposite-sex marriage if said with a view to encouraging another to refrain from same-sex sexual behaviour”.

So a minister, priest or imam who sets out his faith’s traditional teaching on sex and sexuality to an individual who is same-sex attracted could potentially be committing a public offence, if this was deemed to have caused harm. The same would apply to someone preaching such a message to a large group, one or more of whom may be same-sex attracted. Again according to O’Neill, the legislation, if it followed the recommendations of the Scottish Government’s expert advisory group, “would have the undoubted effect of criminalising much mainstream pastoral work of churches, mosques and synagogues and temples”.

Parents and doctors at risk of prosecution?

Clearly, legislation in this area carries a serious risk of restricting both religious freedom and freedom of speech. But what is being proposed is potentially even more damaging and far-reaching, as it covers not just matters of sexuality, but also gender identity.

It would be deemed to be conversion therapy to try and change or suppress a person’s gender identity or gender expression, meaning that, for example, a parent who in good faith sought to caution their child in relation to any stated intention to embark upon gender affirmatory or gender transition treatment would potentially be committing an offence, although the consultation suggests this would only apply where “coercion” was involved. Similarly, any medical practitioner taking the same approach, and trying to dissuade a patient from undergoing gender reassignment, could be committing an offence.

It is not surprising that these proposals have already generated a furious reaction from many of the same people, particularly campaigners for women’s rights who objected to the Gender Bill. There are very serious concerns that cut right across the political spectrum in relation to the dramatic growth we have seen over the last decade in the number of children claiming to be transgender or non-binary, and the number being referred to gender clinics.

The interim report of the Cass Review into the NHS Gender Identity Development Service highlighted serious issues about the impact of puberty-blocking drugs on children, and the approach being taken to affirm young people in their chosen gender. The more we learn about these complex issues, the more we understand the need to proceed with caution when developing public policy in this area.

Any Bill in this area would also have very serious legal complications. How can “gender identity” be defined in law, when it is, almost by definition, fluid? If an individual can change their gender identity at will, is there a credible legal route to make encouraging or discouraging such a change an offence?

We are already seeing a backlash from even normally supine SNP MSPs to what is being proposed, with suggestions that as many as 15 might be prepared to rebel and vote down such legislation. If Scottish ministers press on regardless, it will be clear that they have learnt nothing from last year’s Gender Bill fiasco.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife